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Aspects of confidentiality: Social media

One of the most commonly recurring issues that feature on the MPS advice line is confidentiality. In each edition of Casebook we will highlight an unusual scenario, at the heart of which lies a difficult dilemma around confidentiality.

An anaesthetist in private practice, who mainly works with children, contacted MPS recently with a query regarding social media use. She reported that over the past year, colleagues had noticed a trend emerging among parents of children who have been involved in dramatic/ freak accidents.

This saw the parents set up a ‘support group’ using social media (usually Facebook), where they publish daily updates of their child’s progress in great detail, including photos. Our member was concerned that photos of hospital staff and the buildings themselves (inadvertently featuring other patients) are being uploaded, and personal and clinical details are being shared.

What are the medicolegal implications of this? 

Advice

Facebook allows a subscriber to choose privacy settings, choosing which information to make available, whether all postings can be made public, or whether only “friends” can have access to the postings. Once a party discloses their personal information and the information is disseminated in accordance with the privacy settings, there is said to be a waiver of their rights to privacy.

The difficulty with the Facebook system, as opposed to other social networks, is that there is no mechanism with which to control what other people place on their profiles. One of the Facebook applications is that a user may share photographs by “tagging”. This allows a person to click on the photograph and then enter a person’s name. “Tagging” also enables one to post information that may be seen by one’s Facebook friends.

In the case of Dutch Reformed Church Vergesig and Another v Sooknuna 2012 (6) A 201 (GSJ), the court found that Facebook users may be asked to remove public postings that are defamatory or infringe privacy. An interdict may be obtained to remove the postings and/or prevent further dissemination of information. Facebook may also be exposed for not removing the said posting. This is certainly an avenue practitioners can take to remove defamatory content on a social network site or where confidential information is disclosed without consent. 

If a doctor or nurse is tagged, confidential information of the patient himself and/or of third parties may well be unknowingly disclosed

Patients are entitled to disclose whatever personal information they choose on the website. Patients who comment on medical information on Facebook must be warned that this information could be disseminated to third parties, unless they have the appropriate privacy settings. In addition, if a doctor or nurse is tagged, confidential information of the patient himself and/or of third parties may well be unknowingly disclosed.

Disseminating a photograph, without someone’s permission, could arguably also be considered unlawful disclosure. Accepting a tagged photograph, however, would of course be a waiver to the right to privacy. In addition, any comments that are disparaging may well be defamatory and the patient should be careful about disseminating that information further.

Based on confidentiality, a practitioner must be careful about posting pictures of a patient without consent and/or befriending a former patient. Whilst a patient may publish their own information, a professional cannot respond on the website to the comments made, nor does it give the professional the right to disseminate the information.

Healthcare professionals should treat personal or private information, including the patient’s name, address, birth date, images, and associated health conditions as confidential. Practitioners should always maintain professionalism whilst conversing with patients via social networking sites.

If a patient makes defamatory comments on a social network about a practitioner, the practitioner should not respond on the network to the comments, but should rather in a separate communication request the post/comment be removed; failing which, legal steps can be taken to have the posting removed, and a practitioner could claim compensation for the defamatory comments.

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